Massachusetts drug testing laws

Massachusetts has no law regulating or restricting employer’s right to require drug testing. There are few limits on employer’s drug testing placed by the Federal laws. Employees working in safety-sensitive industries such as transportation, aviation are required to undergo drug testing. Any contractor working with NASA and the Department of Defense will also submit to testing. The issue of private employment drug testing is not address by Massachusetts legislation. However, a ruling was passed on random drug testing in private employment by the Massachusetts Supreme Court.

Drug free workplace policy in Massachusetts

It is very pertinent that the employers in Massachusetts be careful in bringing about a well written drug free workplace polices in order to achieve a safe and secure workplace. The employers should include the following provisions into their written drug free workplace policy to serve as a guide for a legally defensible drug testing program:

Who will be tested and when?

Pre-employment testing: Once an applicant made an offer of employment, he or she must submit to drug testing. No applicants should be allowed to start working unless proven negative to drug test by the test result.

Reasonable suspicion: Any employee suspected by the employer of using drugs or working under the influence of controlled substance or alcohol should be relieve of their assigned duties and undergo a drug or alcohol test.

Post-accident testing: Post accident testing should be carried out on an employee when there is reasonable suspicion of drug or alcohol use or possible deterioration.

Random testing: This may occur in a situation where there is great safety concern. There could be additional testing under relevant circumstances as the employer deems necessary.

What will the company test for?

All illegal drugs or alcohol will be tested for as the situation may warrant. The general policy of the company will be followed and the illegal drugs to be tested will be outline. The company will have to recognize the fact that the state permits the use of medical marijuana, therefore follows the state rules as related to that.

Where will the test be done?

The test should be carried out at the Collection Sites and/or at the employer site.

Consequences

The company drug free workplace written policy will state clearly in an unambiguous manner the specific consequences for a refusal to test or a positive test

Confidentiality

None of the information relating to a drug test will be publicized and only those who have one reason or another to know the test result will have access to it.

Massachusetts medical marijuana

Use of medical marijuana has been legalized in Massachusetts state. However, use and possession of marijuana is still consider as illicit under the Federal Controlled Substances Act. Therefore, using and possession of marijuana is still unlawful under Massachusetts federal law. This legalization of medical marijuana use by Massachusetts state law calls for adjustment of employer’s policies and practice to accommodate employee marijuana use.

Massachusetts in the workplace

Massachusetts state law does not uphold the use of marijuana on-site. The law categorically states that “Nothing in this law requires any accommodation of any on-site medical use of marijuana in any place of employment, school bus or on school ground, in any youth center, in any correctional facility, or of smoking medical marijuana in any public place”. However, the Department of Transport (DOT) testing strictly prohibits marijuana use for any purpose.

Individuals right to use marijuana

As provided by Massachusetts Regulation and Taxation of Marijuana Act, which became effective on December 15, 2016, this Act permits Massachusetts adults over the age of 21 to legally possess, use, purchase and manufacture up to one ounce of marijuana in public. However, the Act does not require an employer to permit or allow using or possession of marijuana by the employee in the workplace. The employers have right to enforce the workplace policies in restricting the consumption of marijuana by employees. The law also does not abridge the employers’ right to submit their applicants and employee to drug testing including marijuana. However, it is very important for the employers to provide a clear notice to the applicants and the employees that drug testing includes testing for the presence of marijuana.

Off-duty marijuana use by employees

The Act make no provision on whether using of marijuana by an employee outside the workplace can be regulate or prohibit by the employers or not. However, if an employee is tested positive to marijuana use, the employers are not prohibited by the Act from taking disciplinary action against such employer. In addition, employers are allow to subject applicants to test based on marijuana use. Despite these facts an employer could be held liable for taking discipline action on an employee using marijuana while off-duty or attempting to restrict marijuana use by the employee outside of the workplace if such employee bring claims under M.G.L.c. 151B (Massachusetts’ anti-discrimination statute), or invasion of privacy since possession and using of Marijuana is legalized in Massachusetts state, this position of the Act thereby leads to various question does disciplining an employee who uses medicinal marijuana outside the workplace or subjecting an employee who uses medicinal marijuana to standard drug testing policies could be construed as disability discrimination or a failure to provide reasonable accommodations to a disabled employee.

As a result of change in law, it becomes imperative for the employers to consider adjusting their policies to give room to use of marijuana off-duty. Consideration of amending the drug testing policies to only marijuana upon a “reasonable suspicion” is also important.

Federal law

Marijuana is considered as a Schedule I controlled substance by the Controlled Substance Act. This makes possession and use of marijuana remains illegal under Federal law. Categorizing of marijuana as a schedule I substance by the federal law makes it a controlled substance that may not be prescribed by a physician, and which has “a high potential for abuse.”

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